Arizona Immigration Law Flirts with Unconstitutionality

Lest we ever think otherwise, the right’s reverence for a painfully restricted version of the Constitution, in defense of “liberty,” only goes so far. Specifically, it only goes as far as the economic liberty interests of the propertied few. The rest of the country — well, to Hell with them.

There’s no surer reminder of this fact than Arizona’s new, hyper-restrictive immigration bill, which permits police officers to demand identification from, and subsequently deport, any person whom they “reasonably suspect” of being in the country illegally. Far-right distinctions notwithstanding, this is a “papers-please” world we’re building — without specific criteria to evaluate suspicion, the comfort provided by the act’s reminder that officers “may not solely consider race, color, or national origin” is a paper shield — and even some conservatives are worried.

The bill’s constitutional toxicity lies in two doctrines (the first of which a friend had to remind me of): first, that while the federal government enjoys substantial deference in enacting immigration laws, states cannot draw on that deference to justify more restrictive regimes (Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 418-19 (1948), see also Plyler v. Doe, 457 U.S. 202, 224-25 (1982)); and second, that “equal protection of the laws” applies to anyone in the country, regardless of their right to be here. The second deserves some more analysis.

Governments can, obviously, defend their borders. But they cannot leverage the deference governments must enjoy in securing their borders into a right to conduct an all-out holy war against foreigners, or undocumented workers. While “undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a ‘constitutional irrelevancy,'” the state can’t act against them unelss it can identify a motivation beyond a bare desire to harm, and tailor the solution fairly to a substantial state issue. Id. at 223.

Further, the state cannot make anyone an alien to its laws — even an alien.

To permit a State to employ the phrase “within its jurisdiction” in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection

Id. at 213-14.

Equal protection is emphatically not about protecting people we like. It’s about protecting people we don’t like from the majority’s all-too-human instinct to dislike without cause, and react out of proportion with any real cause. Acknowledging our constitutional history and heritage honestly, even without reference to federalism concerns, Arizona’s new policy, ahem, “crosses some borders.”

This will be litigated, and it will be close. Until then, we can casually note the parts of the Constitution that the right chooses to emphasize, and the parts it glosses over, and wonder whether anyone ought to vote for a bloc that heartily embraces police-state tactics against unpopular minorities, while waxing poetic over the freedom to contract.

Illegal immigrants can come from any number of foreign countries and races. As long as the police apply the law equally across all races – no harm, no foul. I would think a prudent police force would be sure to round up illegal Chinese or Eastern European immigrants from time to time to create at atmosphere of fairness.

Oh, good, I was going to drop by and ask you to comment on the constitutionality of this.

What I don’t understand is how this gets around the 4th amendment. I get that the bill includes the phrase “reasonably suspect”, but I take it as obvious that without further guidance the bill is either toothless or “reasonably suspect” is going to mean “sees a poor Hispanic”. Is it possible in a realistic scenario to reasonably suspect a person of being in the country illegally on sight alone? And, if not, isn’t asking for ID an unreasonable search?

To clarify, it was my understanding that, even if you got rid of the profiling angle – if the law was just that a policeman could go up to anyone at any time and demand proof of citizenship – the law would still be unconstitutional. If you’re not driving, policemen can only ask for ID if they’ve already stopped you with “reasonable suspicion”, and that has to be more than that you just look suspicious, right?

I think that the best police work would be done by targting job sites of professions that historically employ illegals. Landscapers, roofers, tobacco farmers, janitorial operations, nail salons, etc. This puts the pressure on employers as well as the immigrants and isn’t race-based.

Mike I agree that enforcement needs to be on employers, but I also think you need to be realistic. the illegal population in land-locked Arizona is going to be overwhelmingly Hispanic, and like it or not some white conservatives harbor racial animosity towards Hispanics. What this law is going to lead to, until struck down as unconstitutional, is either no change in actual enforcement (which makes its supporters look like fools), or targeting of all Hispanics in a vein attempt by local law enforcement to look like they are complying with out engaging in discriminatory practices. Either way, the legal and growing population of Hispanics in Arizona is going to get harassed for doing nothing more then looking like an illegal immigrant.

So then, again, why not put the pressure on employers? If they have immigrants working for them they should have papers. Period. Show up to a job site and make them produce. That will nab the majority of the illegals. I certainly don’t want them driving down the street and stoping Jose on his bike. That becomes harrassment.

I think we can’t over-estimate how much it bothers the people of Arizona to have illegals in their midsts. It’s a serious problem. It needs to be dealt with. The feds aren’t getting it done, what other options are they left with?

Mike, the problem here is that Arizona’s new law only deals with “Jose” when he is on the street. It does not give the local police the right to go to the employers and do as you suggest. That part of the enforcement puzzle still rests with the feds.

I agree that immigration is a serious problem, but it is a federal responsibility. If the citizens of Arizona are not happy with how the federal government has handles immigration, they need to send elected leaders to Washington who will do something different. What they don’t need to do is alien ate their fellow citizens who happen to look like the sub-population of illegal immigrants and now must carry their green cards everywhere just in case they get stopped by a police officer who has a “reasonable suspicion.”

Phillip – I think Arizona is expressing a frustration that many states have which is that Washington isn’t helping them. There have been many folks sent to Congress who promise to be tough on illegal immigration and it isn’t getting done. While this policy is ripe for potential abuse, if it’s going to happen, local law enforcement is best-situated to know where illegals are and to deal with them accordingly. I’m not thrilled about it, but in the absence of real federal control of the border – this is what we’re left with.

Frustrating as it is, Plyler’s right on account of poorly-written constitutional text. The 5th & 14th together do work to eliminate the old common law outlawry (something I’d like to see brought back as a criminal punishment). Were it not for them, illegal immigrants would fit the definition of outlaw perfectly.

All that said, “It’s about protecting people we don’t like from the majority’s all-too-human instinct to dislike without cause, and react out of proportion with any real cause.”. You imply that there’s not cause to dislike illegal immigrants. Aren’t violating federal law and cutting in line – cheating, essentially – both cause for dislike?

Steve, given that certain sectors of the American Economy rely heavily on illegal immigrants – farming, house construction leap immediately to mind – the “causes” for dislike are really essoteric and not existential (as some Arizona conservatives would have you believe). There are all sorts of groups, sub-cultures, and economic classes who might have some cause for being disliked, but that doesn’t mean we should pass legislation that targets them when, frankly, we as a nation have much larger problems to tackle. Remember, only a generation ago Blacks had to sit at the backo fthe bus because they were disliked.

While I agree with you that immigrant labor is a vital and irreplaceable part of our economy (which is why I support guest worker programs and a logical path to citizenship) there’s another side of this that is being somewhat ignored. That part is the drug trade and unsecure borders play a big role in that. That is a major problem in border areas and US citizens are terrified of the people moving through their land. With troops securing the freedom of Iraqis and Afghanis I think we need to ask ourselves why Americans are living in fear of foreign invaders in our own country.

I don’t see any alternatives. The idea of ranks of Army and National Guard troopers guarding tall walls and barbed wire zones along the Rio Grande presents a very seductive imagery, but it does not have substance. Using military forces to perform routine law enforcement tasks is a bad idea, because they’re not trained for that sort of thing. The Mexican federal government already has almost 50,000 soldiers stationed in the Chihuahua province to combat the cartels, and it has done nothing except escalate the violence.

A legalisation of the less harmful drugs would at least take the trade out of the hands of organised crime, and allow distribution and use under more controlled conditions, which in turn would reduce crime and health risks among the user demographics. There’s also a foreign political benefit, in that it increase the political stability of Columbia, Mexico and other countries that are currently affected by the presence of the drug cartels.

Small problem with that: North and South Korea have virtually no trade interaction with each other. Mexico and the US trades to the value of hundreds of billions of dollars each year. As long as there is trade across the border, there are also opportunities for people to get through.

The DEA is going to have to deal with that. What I am concerned with is random Mexicans crossing American ranches during the night with drug runners. That’s where the drug enforcement has to be severe.

With troops securing the freedom of Iraqis and Afghanis I think we need to ask ourselves why Americans are living in fear of foreign invaders in our own country.
Because two successive administrations on both sides of the political aisle want it that way, and view it as more important to fight those wars then deal with immigration.

Ok, but how have they forced it? Is there legislation that will come to Congress from Arizona’s delegation that moves money around in the federal budget so Customs and Border Protection can hire more folks to patrol in Arizona? has Secretary Napolitano issued directives moving staff from other parts of the country? Has John McCain pushed Mitch McConnel to get financial reform out of the way so the Senate can take up immigration reform?

The answer is no, and based on current reporting across many sources, the answer will remain no for a long time. So the legal challenges – which our tri-partate system of government both demand and ensures – are about all that can be done to deal with the issue.

Mike, you are correct that we’renot at full-blown Nazi like state yet, but a quick read of one of your favorite subjects will show that one of the first tools imposed by the Nazis to begin controlling the population of Germany was a REQUIREMENT to carry citizenship papers, which clearly ones religion on them – thus making Jews easy to find and harrass. The Nazis also instituted criminal penalties for those refusing to produce papers. so the analogy is not completely off base, since a certain segemnt of the Arizona population, legally in this country, will now have to start carrying proof of that legality or risk jail time and a fine.

The Nazis weren’t dealing with a huge illegal population in their midsts. We are. If you want to talk about another historical example, I’d be curious to find another instance where there was such a large invasion of a foreign country without a violent response. The fact that the harshest tactic we’re willing to employ is a police stop speaks volumes to how unlike other unsavory governments we are.

As for the impact on legal citizens, I’m reminded of a scene from The Untouchables. Sean Connery’s character takes Elliot Ness to a backroom at the post office and tells him they are making a liquor raid. Ness balks.

Eliot Ness: What are we doing here?
Jim Malone: Liquor raid.
Eliot Ness: [looking at the police station across the street] Here?
Jim Malone: Mr. Ness, everybody knows where the booze is. The problem isn’t finding it, the problem is who wants to cross the pond.

Do you think the police don’t know where the illegals are in Arizona? It’s not as though these stops will be completely random. Someone just has to be willing to ‘cross the pond’.

You really say the weirdest things sometimes, Mike. Polemics aside, surely you must be aware that a migration is far from the same thing as an invasion. Besides, what sort of “violent response” do you imagine would even be marginally effective in this situation? Invading Mexico (again)?

Ames – what was the mayor of SF doing when he started marrying gays on the steps of city hall? He knew those would be overturned but he forced the issue.

As for Nazi references I thought this was aconversation between individuals. I don’t make bad Nazi references and would expect the same from you. Because some misguided Republican in Montana calls the Left facists doesn’t give you a pass in this comment thread.

Before you all start declaring the bill unconstitutional, you might want to do your homework:

“Has anyone actually read the law? Contrary to the talk, it is a reasonable, limited, carefully-crafted measure designed to help law enforcement deal with a serious problem in Arizona.

Its authors anticipated criticism and went to great lengths to make sure it is constitutional and will hold up in court. It is the criticism of the law that is over the top, not the law itself.

The law requires police to check with federal authorities on a person’s immigration status, if officers have stopped that person for some legitimate reason and come to suspect that he or she might be in the U.S. illegally. The heart of the law is this provision: “For any lawful contact made by a law enforcement official or a law enforcement agency…where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person…”

Critics have focused on the term “reasonable suspicion” to suggest that the law would give police the power to pick anyone out of a crowd for any reason and force them to prove they are in the U.S. legally. Some foresee mass civil rights violations targeting Hispanics.

What fewer people have noticed is the phrase “lawful contact,” which defines what must be going on before police even think about checking immigration status. “That means the officer is already engaged in some detention of an individual because he’s violated some other law,” says Kris Kobach, a University of Missouri Kansas City Law School professor who helped draft the measure. “The most likely context where this law would come into play is a traffic stop.”

Regarding the whole “it’ll trigger racial profiling and that’s a civil rights violation” matter, I have two questions. First: A priori, what’s the ratio of Hispanics-in-the-US-that-are-illegal-immigrants to Hispanics-in-the-US-that-aren’t-illegal-immigrants that would justify racial profiling? Is there any case law that sets a numeric threshhold? I’d say ethically and logically it’s somewhere between 0:1 and 1:1 (0% and 50% illegal), but law’s another matter.

Second, does anybody know what the ratio actually is (in Arizona preferably, as opposed to the US as a whole)? I have no idea what it is, but I’m assuming it’s way lower than 1:1.

Just curious what conditions people think would justify racial profiling and how far actual conditions are from there.

Maybe someone can explain the legal logic to me about the charge of racial profiling. If the police target meth labs, which are almost always run by white folks, is that racial profiling? Yeah, most illegals in the US are Hispanic. But isn’t that just an ancillary issue? They aren’t leaving Mexico for racial reasons and they aren’t being targeted for racial reasons. They are being targeted because they are citizens of Mexico in our country illegally. That is more of a political designation than a racial one….right?

Anyways, the problem with the bill, the serious one, is the federalism issue. When you’ve got Chemerinsky telling you that, you should listen up — that guy doesn’t fuck around, and basically wrote the book on the, uh, modern Constitution.

It’s not a new issue if it’s in the original post :). And the problem with profiling doesn’t arise based on how many illegal immigrants are Hispanic; it arises from how many Hispanics are NOT illegal immigrants, such that asking for papers from any random Hispanic guy doesn’t provide much more of a chance of catching illegal activity than a random search would.

But isn’t the whole point of the ‘lawful contact’ provision that they won’t be ‘random’? They have to commit some other offense first. Around here I could see the police using our seatbelt law to nab illegals. I see them riding 4-5 across in pickups with no seatbelts all the time. Pull them over for that, ask to see their licenses and then call INS.

Ames, honestly, let’s just cut through the PC bullshit for a moment. Maybe it’s hard to determine who the illegals are in NYC when they are wotrking in more service-oriented jobs and you also have a more diverse population. Here in Kentucky it’s pretty damn easy. I rub shoulders with them every morning at the gas station. I have friends and family that farm and are in the nursery and landscaping business. Some of them even employ illegals. The estimate I have heard is that 75% of the Hispanics in the Louisville area are here illegally. So when I see Mexicans riding 4 deep in a pickup, yeah, the statistics say that 3 of them are probably illegals. The other easy way to make a determination is to talk to them. The legal workers will be able to at least have a basic conversation most of the time. With the other ones I have to use my realy bad college Spanish.

Who said anything about looking in the trunk. Asking for ID at a traffic stop is SOP. Even if they just nab the drivers, that’s a positive step forward.

But Mike, When you see blacks riding 4 deep in a pick-up truck, also a common sight in the south, what do the statistic tell about how many of them are illegals?

And asking for ID in a traffic stop – your drivers license – does NOT certify, prove or in any way demark citizenship. To do that, you need a green card, a passport, a birth certificate, or some written proof of naturalization. Because the vast majority of the illegal population in Arizona is Hispanic (and probably largely Mexican Hispanic), any Hispanics in the state legally now have to carry something else besides their drivers license to prove they are here legally. That’s where the racial profiling comes in, and that where we trip the line to the “papers please” police state.

Oh please, the ability to speak English no more prooves citizenship or legal immigration status then the ability to drive on the right. I meet plenty of immigrants from a huge variety of places daily here in DC who speka English that’s as good as many of my fellow Americans. If that’s how Arizona’s cops are going to determine reasonable suspician . . . .

The inability to say the alphabet backwards while touching one’s nose is reasonable/i> suspicion of being drunk. I think the inability to speak English should be ‘reasonable’ suspicion of being an illegal immigrant.

That’s not the point. The statute doesn’t mention committing offences, it mentions “lawful contact” with the police. I’m sure there’s case law to establish what that means, but it sounds like traffic accidents, domestic disturbances, or even a disagreement over a restaurant bill could all be covered. None of these are traffic-related.

So what I’m asking is, how are genuine US citizens who for whatever reasons do not have or cannot get a driver’s license going to prove that they are in fact citizens? Would the police accept a library card?

From a European perspective, this whole idea about ID is mostly a non-issue, because we pretty much all have government-issued ID cards of some sort and are often obliged to carry them, especially if we go to another Schengen country. The US does not have ID cards in that sense, yet this law seems to say that it is now mandatory for Hispanics in Arizona to carry ID cards, because by the nature of things, every time you go out in public, there is a potential for coming into “lawful contact” with the police.

If that’s the case, maybe the Arizona state government should go the full line and just require all citizens to carry ID with them at all times, but somehow I suspect that would not be received quite as well.

Personally I have no problem with ID cards, having carried one for 21 years. As for government requirements, if someone gets caught up in a domestic disturbance, then they have other problems and their illegal status would just be icing on the cake. As for a traffic accident, we’re back to a driver’s license. A disagreement over a restaurant bill? I’m fine with procedural guidelines that would prevent he cops from asking for an ID.

It’s all about comon sense. If the police have a reasonable reason to ask for an ID in a given law enforcement situation, then they should be able to access a database which will tell them if the person is a legal or illegal residence.

That’s still not the point. The problem is that depensing on the precise definition of “lawful contact”, the law as written seems to open up for situations where US citizens could be thrown in the nick for not carrying an ID card. Effectively, this law makes carrying an ID card mandatory for Hispanics. So what I would just like to know is what those US citizens who might not want or cannot get a driver’s license, the primary type of ID mentioned in the law itself, are actually going to do? Do they need to carry a passport around with them? Birth certificates? Or what?

Here in the US if you get caught driving without a license you get a ticket and your told to show up in court and provide your license. If you are able to do so the charges are dismissed. It’s inconvienant but certainly not a violation of one’s rights. Most/all states provide ID cards that non-drivers can get. At my mother’s insistence I carried one from the time I was old enough to ride my bike out of neighborhood until I got my driver’s license. I don’t think it’s really unreasonable to expect people over 18 to have these. Unless they’re unemployed they are going to need it for work anyway.

Presumably a person who is not able to provide ID would at least be detained unil his or her identity can be confirmed, otherwise the whole thing is pretty pointless.

The question is not whether ID cards are unreasonable in themselves (and again, I don’t think they’re a problem either), but whether it’s unreasonable to expect Hispanics to carry them, simply because they might look like illegal immigrants. If there really is such a huge problem, then the AZ legislature should make it mandatory for all citizens to carry ID with them at all times.

Of course, then they’d probably run into a whole other set of potential constitutional issues concerning “stop and identify” statutes and the 4th Amendment.

Not being able to provide documentation shouldn’t be cause for arrest. Giving your name as Jose Sanchez at a specific address and finding no record in the police system might be. It’s 2010. Every cop here in Louisville has a computer in their car.

Driving without a license is not quite comparable – since here the ID is used to determine citizenship or residence status.

The law text is pretty dense, but it doesn’t seem to say what happens to people who don’t have ID available. Still, although the biblical parallels are certainly appealing, I doubt just claiming “I am an American citizen” will be enough.

And when driving the license is used to determine whether or not you should be on the road. In both cases the ID is used to determine legality.

As for being let go with a citation, we do it for driving, why not for residency? or are you claiming one is a more serious offense thus justifying detention? Again, checking a database should be quick and painless. Don’t have your ID but the info checks out? Cool. See you in court and the citation will be dismissed. Info doesn’t jive? Time to take a ride.

We can expect a deluge of stories such as this: only a matter of hours after Arizona’s borderline-racist and almost certainly unconstitutional law targeting immigrants was signed by the state’s governor, a US citizen is the first to experience life under the new law.

The man, a truck driver, was arrested and handcuffed in Phoenix after he was asked to produce identification.

[…]

And that was the situation even before the new bill is going into effect. But I’m sure that doesn’t mean these fine gentlemen won’t enforce it in a reasonable and common-sense manner, no sir!

I for one am glad that Arziona done the right thing it is about time that some one had the back bone to tell the illegal immigrants enough is enough through this bill. I am tired and so are other of these illegals taking advantage of our way of life in america, they ask for our bread and butter but are not willing to become citizens we have become the laughing stock of the world for giving them the rights of citizenship that we were born with. If they are hear legally that is one thing, but to come over here and take advantage of our rights and our way of life to include our goverment system is wrong? they have at least 14 years to become citizens and what happens not a dam thing! I say get out, or become a US citizen and enjoy all rights as a US CITIZEN. And besides you have nothing to worry about if you are here legally no harm no foul, and has far as these activist goes the only thing they no how to do is stir up trouble, i wouldn’t be surprise if they are here illegal to.And by the way i do not care about comments either.One proud American!Who stands for anerican rights and our freedom and yes proud veteran

The People’s Work…

Marius is a government attorney for a jurisdiction in the New York metropolitan area. His views may coincide with, but do not represent, those of the people of the state of New York, or his former clients.